Fault in divorce – time to leave it behind?

The Nuffield Foundation has produced its latest study, reflecting on fault and divorce law in England and Wales. The report builds on the interim results from early this year that we reported on. The aim of the research project was to explore how the current law regarding divorce and civil partnership dissolution operates in practice and to inform debate about whether and how the law might be reformed. The findings continue a theme supported by many practitioners, namely that the law relating to divorce is in dire need of reform.

As part of a study, it was found that 71% of participants thought that fault should remain part of the law. However, the general public are unlikely to be aware of the very limited scrutiny that the court can undertake in practice, with the research indicating the court would take an average of five minutes to review a petition.

In reality, the court can only take these fault based allegations at face value. It is common for respondents to state in their ‘Acknowledgement of Service’ that they do not accept the petitioner’s allegations. These ‘rebuttals’ are routinely ignored except in the very rare (2%) defended cases, where the respondent files an Answer and can afford the court’s administration fee. The court’s reliance upon the petitioner’s account may seem very unfair to a respondent, who disputes the allegations but cannot afford to formally defend the petition. It is not yet clear, as a result of the survey, how this is operating in practice, but there appears to be an increasing gap between the potentially painful requirement on parties to produce evidence of fault and the reality of rather limited inquiries by the court.

Amongst parts of the media and within the legal sector, there is now “…a renewed appetite to address what many see as an increasingly anachronistic divorce law, with calls for no-fault or even consideration of administrative divorce coming from various quarters, including the President of the Family Division and Resolution.”

In conclusion, the study found “…we already have divorce by consent or ‘on demand’, but masked by an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state. There is no evidence so far from this study that the current law does anything to protect marriage. The divorce process is currently being digitised. This is a timely opportunity for law reform so that divorce is based solely on irretrievable breakdown after notification by one or both spouses.”

Serving London, Bedford and the surrounding villages, our lawyers can help you with your divorce and family law matters. If you would like to speak to one of our solicitors to discuss your case, contact us today on 0207 177 9777 or 01234 889777.